Hau and Dam and Ors - [2014] FCCA 3170

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAU & DAM & ORS

[2014] FCCA 3170

Catchwords:
FAMILY LAW – Parenting – application by mother and maternal family members in anticipation of mother’s impending demise – urgency – undefended hearing in circumstances of urgency and when sufficient due process afforded to the father – orders sought vesting parental responsibility in a triumbrant of maternal family members including the mother – orders reflect appropriate and insightful planning for the child’s future best interests in light of imminent events.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CC(2A), 61DA, 65C, 65DAA(5)

Federal Circuit Court Rules 2001, r.4.03

Allesch v Maunz [2000] HCA 40
Burton & Churchin & Anor [2013] FamCAFC 180

Aldridge & Keaton (2009) FLC 93-421

Applicant:

MS HAU

First Respondent:

MR DAM

Second Respondent:

MS T HAU

Third Respondent:

MS LO

File Number:

PAC 2982 of 2014

Judgment of:

Judge Harman

Hearing date:

16 December 2014

Date of Last Submission:

16 December 2014

Delivered at:

Parramatta

Delivered on:

16 December 2014

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

South West Sydney Legal Centre

No appearance by the First Respondent

Solicitors for the Second Respondent:

Mr Brown of Browns the Family Lawyers

The Third Respondent appeared in Person

ORDERS

The child X born (omitted) 2013 (“the child”), shall live with the mother Ms Hau and the maternal aunt Ms T Hau.
The mother Ms Hau and the maternal aunt Ms T Hau and the maternal grandmother Ms Lo shall have equal and shared parental responsibility for the child X born (omitted) 2013.
The child shall spend time with the father Mr Dam as agreed.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Remove all issues from the list of matters awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Hau & Dam & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 2982 of 2014

MS HAU

Applicant

And

MR DAM

First Respondent

MS T HAU
Second Respondent

MS LO
Third Respondent

REASONS FOR JUDGMENT

These are proceedings relating to future care arrangements for a young child X born (omitted) 2013. X is 1 year of age.
The parties to the proceedings, for reasons that will become obvious, are numerous.
The Applicant is X’s mother. The first Respondent’s is X’s father. The second and third Respondents are X’s maternal Aunt and maternal grandmother respectively.

Due Process

These proceedings were commenced by an Application filed on 14 November 2014. Whilst the application includes an abridgement plea it would not appear, for reasons that are unknown, that the matter was listed with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 3170
Decision Date: 16 December 2014

CaseChat Overview and Summary

In the matter of *Hau and Dam and Ors*, heard before Judge Harman, the dispute concerned the living arrangements and parental responsibility for a child, referred to as X. The primary parties involved were the mother, Ms Hau, and the father, Mr Dam, with the maternal aunt, Ms T Hau, and maternal grandmother, Ms Lo, also playing significant roles in the proceedings.

The court was required to determine the primary residence of the child, the allocation of parental responsibility, and the time the child would spend with each parent. Additionally, the court needed to consider the specific details and consequences of the orders made, including provisions for compliance and assistance, as mandated by sections 65DA(2) and 62B of the relevant legislation.

Judge Harman ordered that the child X would live with the mother, Ms Hau, and the maternal aunt, Ms T Hau. Equal and shared parental responsibility for the child was allocated between the mother, the maternal aunt, and the maternal grandmother, Ms Lo. The child was to spend time with the father, Mr Dam, as agreed between the parties. The court also stipulated that the particulars of these obligations, potential consequences of contravention, and available assistance were to be detailed in an attached Fact Sheet, which was incorporated into the orders. Finally, all outstanding issues related to the matter were removed from the list of matters awaiting hearing.

Orders

Orders of the court

The child X born (omitted) 2013 (“the child”), shall live with the mother Ms Hau and the maternal aunt Ms T Hau.

The mother Ms Hau and the maternal aunt Ms T Hau and the maternal grandmother Ms Lo shall have equal and shared parental responsibility for the child X born (omitted) 2013.

The child shall spend time with the father Mr Dam as agreed.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Remove all issues from the list of matters awaiting hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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